Inder Jit Singh, Presiding Member

The present Consumer Complaint (CC) has been filed by the Complainants against Opposite Parties (OPs) as detailed above, inter alia praying for directions to the OP(s) to:-

                   (i) Cure all the deficiencies in the Apartment bearing No. 1011 on Floor No.1 of Tower no.1 in the apartment complex named One Bangalore West alongwith two car park area situated at Municipal No.1, Dr. Rajkumar Road, Industrial Suburb, Municipal Ward No.67, Rajajinagar, Bangalore and provide all essential amenities and facilities therein including regular power supply, water supply, cooking gas connection and hand over possession of the said apartment to the complainants herein forthwith.

                   (ii) Direct the respondents to execute a sale deed in favour of the . complainants in respect of the above said apartment and get the same registered in the office of the concerned Sub-Registrar;

                   (iii) Direct the respondents to make the payment of Rs. 1,50,00,000/- with interest @ 24% per annum from 26.11.2015 till the date of realization I payment towards damages suffered by the complainants herein;

                   (iv) Direct the respondent to pay a cost of Rs.1,00,000/- towards the cost

2. Notice was issued to the OP(s). Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit and Written Arguments/Synopsis etc.

3. Brief facts of the case, as emerged from the pleadings of the parties and other case records are that OP No.1 and 2 launched a residential apartment project ( Project) in the city of Bangalore under the name and style of One Bangalore West. The complainants no.1 and 2 booked an apartment with OP Nos. 1 and 2 in the said project of the OP. OP nos.1 and 2 issued an allotment letter, dated 23.09.2012 to complainant no.1 alloting apartment no. 1011 on Floor No.1 of Tower No.1 in the said project alongwith two car park area. The allotment letter also contained a schedule of payment of the price of the apartment. The apartment booked was to consist of four bedrooms, hall kitchen, family room and study room with an area of 3436 sq. feet. -

4. It is the case of the complainants that OP Nos. 1 and 2 entered into two separate formal agreements dated 30.11.2012 with the complainants, namely, agreement to sell and another agreement namely 'construction agreement'. Under agreement to sell, the complainants were to get a specified undivided share and the second agreement 'construction agreement' contemplated that OPs would construct the project with all the amenities within a period of 36 months from 27.11.2012 and possession of the apartment would be delivered to the complainants after the same was ready for use and occupation. Therefore, OPs ought to have completed the construction of the project on or before 26.11.2015.

5. Further, it is claimed by the complainants that before said agreements were executed, the complainants had paid a sum of Rs.45,27,541/-apart from sum of Rs. 10,00,000/- paid earlier at the time of booking. The complainants complied with all the demands made by the OPs for payment within the stipulated time, as stipulated under the allotment letter and two agreements dated 30.11.2012. The complainants also averred that they had paid total sum of Rs. 2,85,75,392/- to the OPs.

6. It is also the case of the complainants that OPs failed to complete the construction of the said project and failed to hand over the possession to the complainants within the stipulated time.

7. OPs sent a letter dated 11.08.2016 to complainant no. 1 stating that they have completed the apartment and had received necessary sanction including occupation certificate and asking the complainants to take possession of the apartment after making due payments. According to said letter, the complainants were required to pay a total sum of Rs.35,70,30/- to the OPs apart from separately paying for stamp duty and registration charges of Rs. 17,94,474/-, which also contained certain terms and conditions in particular condition no.6 of the construction agreement. Complainant's case is that even going by the letter dated 11.08.2016 sent by the OPs to the complainants, there was delay of more than 9 months in offering possession of the apartment to the complainants. After receipt of the said letter, the complainants visited the apartment complex to verify the stage of construction and condition of the apartment and found many deficiencies and defects in the construction of the apartment and the amenities provided by the OPs. The OPs have not taken regular electricity supply from the Electricity Company namely Bangalore Electricity Supply Company and there was no regular water connection made available. Further, construction, quality particularly the finishing of the apartment was of inferior quality. The complainants also noticed that total 'super built-up area mentioned by the OPs was not available. The OPs in their letter dated 11.08.2016 had mentioned that super built-up area had increased from the originally stipulated 3436 sq. feet to 3516 sq. feet ( an increase of 80 sq.feet). However, the said allegedly additional area of 80 sq. feet was not available. Further, many of the demands made by the OPs in the said letter were unjustified. The complainants sent an email to the OP pointing out the said facts and seeking clarification and rectifications. Complainant also pointed out in the email dated 12.09.2016 that there was seepage on the walls, broken window glasses and the flooring in the apartment were broken and the same required rectification and replacement.

8. It is further averred in the Complaint that OPs sent an email dated 16.09.2016 to them stating therein that increased super built-up area mentioned by OPs was actually available as per Architect's certificate. The OPs waived additional charges for the allegedly increased super built-up area. On 10.10.2016 the OPs sent an email to the complainants that snags pointed out by the complainants are under process and same would be completed by 17.10.2016. The complainants went to the site and inspected the apartment on 24.10.2016 and found that OPs had failed to carry out the necessary replacements and rectifications as promised. The complainants wrote an email dated 30.10.2016 asking the OPs to carry out necessary rectifications and it was specifically mentioned that complainants were ready to pay the last instalment and to take possession.

9. It is further averred by the complainants that OPs assured the complainants about grievances of the complainants and OPs in particular assured that flooring in the apartment would be replaced and other defects too would be rectified. OPs vide mail dated 17.11.2016 stated that it was not possible to relay the marble flooring. The complainants sent another email dated 21.11.2016 to the OPs that apartment was not in fit condition for occupation.

10. On 20.12.2016 the OPs sent a letter by e-mail to the complainants stating that they had decided to replace the marble and the main door and carry out rectification of the dampness on the wall and sought 10 working days. However, no needful was done by the OPs.

11. On 21.01.2017, complainants received by post a letter dated 18.01.2017 from the OP terminating the allotment of apartment and also purported to cancel 'agreement to sell' dated 30.11.2012 and the construction agreement dated 30.11.2012 and also purported to forfeit an amount of Rs.52,74,000/- being 20% of cost of construction and also the interest amount. The complainants immediately on 21.01.2017 sent an email to the OPs protesting against such purported termination. However, respondents sent an email to the complainants that they would re-examine the issue. However, on 21.02.2017, the complainants received a letter dated 17.02.2017 from the OPs stating that earlier purported cancellation stood confirmed. The complainants sent email on 20.02.2017 to the OPs stating that they are ready to pay the balance amount , i.e. the last instalment due from them. The OPs took unreasonable stand and, therefore, OPs sent a reply. The complainants also paid by cheque a sum of Rs.22,95,430/- to the OPs by way of last instalment for the purpose of taking possession of the apartment and to get sale deed registered in respect of the apartment. Thus, the complainants paid the entire amount payable to the OPs towards the price of the said apartment.

12. It is further the case of the complainants that OPs demanded the amounts far in excess of the agreed price for handing over possession. Complainant's case is that clause 1.4 of the agreement to sell requires the OPs to issue a notice of 15 days before terminating the agreements, however, the OPs did not issue any such notice before purporting to terminate the agreement. Further, the letter dated 11.08.2016 sent by OPs asking the complainants to take possession of the apartment after payment of the last instalment inter-alia stipulated by condition no.6 contained therein that the complainants were to take possession within 3 months therefrom and in the event of failure to do within 3 months, holding charges of Rs.50/- sq. ft would be charged.

13. It is further averred by the complainants that OPs did not construct and did not ready the apartments in a fit condition for occupation by the complainants. Further, it is also evident from the correspondence between the parties that OPs themselves acknowledged that the apartment require considerable repairs, replacements and rectifications. The OPs failed to complete the construction within the stipulated time and OPs failed to hand over possession of the apartment to the complainants within the stipulated time. The complainants had already paid ( before making the last payment by cheque) an amount of Rs.2,62,56,776/- to the OPs. Thus, prior to making the payment by the cheque , the said sum of Rs.2,62,56,776/- was paid by the complainants to OPs. The OPs also stated in the letter dated 18.01.2017 that they would be refunding a sum of Rs. 1,54,335/- after deducting Rs. 52,74,000/- ( 20% of cost of construction) and Rs.2,88,769 (towards outstanding interest) from the amount paid by the complainants. The complainants had already by that time a sum of Rs.2,62,56,776/- and in the event of OPs making a refund of Rs.1,54,51,335/- they would be actually deducting from complainants a sum of Rs.1,08,05,441/-. It is also the case of the complainants that there has been considerable delay on the part of the OPs in completing the building of the apartment complex and in handing over the possession of the apartment. OPs are liable to pay the damages as contemplated under clause 6.4 of the construction agreement.

14. It is also the case that OPs have not taken any steps to revoke the termination notice or the letter of cancellation. The OPs have themselves violated clauses 5.3 and 16.3 of the agreement to sell. Despite various defects and deformities, faults and snags with the apartment, the complainants have paid the last leg of the balance amount due. No steps have been taken thereafter to execute the conveyance deed and put the complainants in possession. Till the filing of the complaint, neither any refund has been made nor the OPs have come forward to execute the sale deed. The complainants have made full and final payment yet the OPs have not executed the sale deed. Being aggrieve, the Complainant filed the Consumer Complaint.

15. The Opposite Party in the consumer complaint filed their Written Statement I Reply. It is stated in the written statement that the issues raised in the complaint arise from disputed questions of facts and as such would require recording of evidence. It is further stated that OP no.2 was merged with OP no.1 vide order of the Hon'ble High Court of Bombay and as such does not exist as on the date of this legal proceedings. Further, it is averred that under the construction agreement, it was contemplated that OP(s) would construct the tower -1 within a period of 36 months i.e. by 30.11.2015 with further period grace period of 6 months. The complainants were not diligent in making the payments as per the agreed schedule and were habitual defaulters and therefore were in breach of the agreement to sell. The OPs as per approved plan completed the construction of residential tower well in time and filed an application for occupation certificate with Bruhath Bengaluru Mahanagra Palika (BBMP) on 02.02.2016 which is evident from the occupancy certificate dated 11.08.2016. The OPs completed their part of obligation well in time as agreed under the agreement.

16. The OPs issued a letter dated 11 August 2016 to Complainants No. 1 and 2, intimating that the BBMP had issued the Occupancy Certificate and that possession of the allotted apartment would be handed over upon completion of the balance payments in accordance with the agreed terms. The letter further stated that the super built-up area of the apartment had increased from the originally estimated 3,436 sq. ft. to 3,516 sq. ft., an increase of about 80 sq. ft., the cost of which was waived as a gesture of goodwill. The complainants were required to pay a sum of Rs. 35,70,380/- towards the balance consideration and approximately Rs. 17,94,474/- towards registration and stamp duty charges. It was also stipulated that failure to complete the payments and execute and register the sale deed within three months of receipt of the letter would attract holding charges at the rate of Rs. 50/- per sq. ft. per month. It was also averred that there was no delay attributable to the OPs in applying for obtaining the Occupancy Certificate. OP No. 1 applied for the Occupancy Certificate on 02.02.2016, well within time, and offered possession of the allotted apartment immediately upon receipt of the certificate, as required by law. As per Clause 6.1 of the Construction Agreement executed between the parties, any delay in obtaining approvals or certificates from the competent authorities cannot be construed as a delay on the part of the respondents.. It is further averred that on receiving the occupation certificate the OP No.1 sent to all the allottees of tower 1 of the project including the complainant of receipt of occupation certificate and intimated them to take possession of the apartments allotted to them after completing the possession amount and completing execution and registration of sale deed. Further, the OPs informed the complainants that the OPs have received intimation for possession on 19.08.2016. Further, the snags which were pointed out by the complainants are being addressed and same would be completed by 17.10.2016. The snags were addressed in spite of the fact that such snags are common in a new apartment I Tower for initial teething period of a new apartment I tower.

17. On 15.11.2016 the complainants stated their intention in blatant violation of the terms of the agreement to sale and construction agreement not to pay the balance dues for the possession. The complainants stated to give an option to the OPs to either to Re-lay the entire flooring of the living room or to waive off the possession in order to enable the complainants to accept the possession and register the sale deed. It is further stated that complainants had no financial arrangements and ultimately stated in email dated 15.11.2016 their intention to completely evade the payment inspite of the OPs making all out efforts to satisfy the complainants. Further, in the same tower many other apartment owners took possession and are residing without any issue.

18. It is also stated in the written statement that complainants deliberately on filmsy grounds of snags I reasons failed to comply with the terms and conditions of the agreements and evaded the payment of balance consideration and amounts due in terms of the agreements and allotment letter and, therefore, in consonance with clause 1.6 of the agreement to sell and clause 6.09 and 5.4 of the construction agreement issued a notice of termination of agreement. Despite being aware of the termination of the agreement and cancellation of allotment, the complainants sent a cheque of Rs.22,95,430/-. However, the same was not accepted by the OPs as the agreements were already cancelled by then.

19. It is further averred that Ops had right to forfeit 20% of the cost of the apartment as per clause no. 1.6 of the agreement. The OPs have waived off their right of forfeiture of the cost of construction and refunded the entire sale consideration being Rs.2,56,05,773/- through RTGS. It is also stated by the OPs that present complaint is devoid of any merits and needs to be dismissed.

20. Complainants in their rejoinder stated that despite receiving the entire amount of Rs.2,85,75,392/-, OP failed to deliver and hand over vacant possession of the property. Further, OPs are in violation of the Real Estate ( Regulation and Development) Act, 2016 which has come into effect on 1st May 2017. The OPs have not obtained completion certificate in respect of the Block / Tower in which the schedule property is situated. Moreover, the project 'One Bangalore West' being an ongoing project for which the completion certificate is yet to be issued, the OPs are under an obligation to make an application for registration of the said property within 3 months from the date of commencement of the Act without which the OPs cannot advertise, market, book, sell or offer for sale or invite for purchase any apartment. The OPs herein have not made any application to the concerned authorities for registration of the apartment. It is pertinent to note that the website of the OP shows that they got registration done only for Tower-6 of the Project. The OPs knowing fully well that it is mandatory to obtain registration for all the seven towers falling under the project - One Bangalore West, have failed to do so and are even as on date in violation of the Real Estate (Regulation and Development) Act, 2016. Further, there are no disputed questions of fact raised in the complaint. Further, complainants have made all the payments and it is the OPs who have not honoured their obligation under the agreement to sell and construction agreement by failing to complete construction in all respects within the prescribed time limit, by failing to obtain occupancy and completion certificate and by failing to provide the basic necessities to enable the complainants to take possession of the property. Further, merger of respondent no.2 with OP No.1 has not been disclosed to the complainants. Moreover, the OPs have executed the construction agreement dated 30.11.2012 and agreement to sell wherein OP No.2 is a separate party. Therefore, the OPs cannot now say that OPNo.2 Company does not exist as on the date of legal proceedings.

21. Complainants also stated in the rejoinder that all payments were made within the time period stipulated as per demand letter except the payment for Completion of Block Work which was delayed due to completion of block work and several works which were pending Further, the OPs have produced only partial occupancy certificate which also indicates that occupancy certificate is not issued in respect of Tower-1 and would show that permission is granted to occupy the building only in so far as Block 3, 3a and 3b is concerned and not in relation to Tower-1 and the said certificate is only tentative and subject to various conditions. Further, there is no increase in the total built up area by 80 sq. ft and common area cannot be used for calculating super built up area. The OPs have applied for the occupation certificate on 02.02.2016 is not within the knowledge of the complainants since the same was not intimated to them. There was delay on the part of the OPs to apply for occupancy certificate. No communication was received by the complainants from the OP in response to the complaints made by the complainants.

22. It is further stated that complainants did not utilise any loan amount form the bank for the purpose of payment to the respondents for purchase of the present property and complainants paid all the instalments from their own funds. Further, instead of rectifying the defects, OPs terminated the agreement to sell and construction agreement. There was no delay of 4 months in payment of the final instalment and complainants have always been ready and willing to pay the final instalments.

23. Further, it is stated that OPs have obtained OC on 11.08.2016 without obtaining regular water supply and power supply from the concerned authorities. Further, complainants made all arrangements to pay the last instalment also through their bankers. The OPs cannot take advantage of clause 6.0 of the construction agreement, which states that schedule property will be deemed to be fully completed in all respects and the purchaser will not have any claim for any items of work not carried out or not completed. The said clause will become applicable only upon taking the possession. After filing the complainant, the OPs have paid a sum of Rs.2,56,05.773/- and not Rs.2,56,27,173/- as against Rs.2,62,56,776/- paid by the complainants. Few owners who have tken possession have got major works done themselves.

24. Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Rejoinder, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

25. Learned counsel for the complainants who apart from repeating the points which have been stated in para nos. 3 to 14 argued that OPs did not make available the amenities necessary for taking possession and occupation of the apartment like the OPs did not get regular power supply from Bangalore Electricity Supply Company and OPs also did not get regular water connection from Bangalore Water Supply and Sewerage Board. Without these basic amenities, OPs could not have claimed completion of the apartment and could not have insisted on payment of the last instalment before the Complainants taking possession. Further, under the construction agreement, as stated in clause 6.4, in the event of failure of OPs to deliver possession within the stipulated period, OPs are liable to pay to the complainants damages equal to Rs.4/- per sq. ft. area for the super built up area of the apartment.

26. It is also argued by the counsel for the complainants that flat is available under lock and key with it. Therefore, the OPs ought to hand over possession of the apartment and register sale deed after curing all deficiencies. Further, it is argued that it the submission of the OPs that there exists an arbitration clause in the agreement to sell and construction agreement. However, the Supreme Court has examined this question in M. Hemalatha Devi and Ors. vs. B Udayasri ( 2024) 4 SCC 255 and held that notwithstanding the arbitration clause in the agreement, so far as consumer dispute is concerned, it is non arbitrable and present complaint is maintainable. Learned counsel relied on the judgment of the Hon'ble Supreme Court in NBCC ( India) Ltd. Vs. Shri Ram Trivedi ( 2021) 5 SCC 273, DLF Homes Developers Limited Vs. Capital Greens Flat Buyers Association and Ors. ( 2021) 5 SCC 537, Bengal Unitech Universal Infrastructure Pvt. Ltd, New Delhi Vs. Dr. Anup Bhargava and Anr.- FA No. 1908 of 2018. Further, the OPs retained the entirety of the consideration amount for several years from 2012 to 2017 and Rs. 2,56,05,773/- was remitted back to the complainants without any interest. It is also argued that in the event this Commission is of the opinion that complainants are liable to return the consideration amount with interest, complainants are willing to pay 6% simple interest on the consideration amount.

27. Counsel for the OP argued that all times the complainant was seeking waiver of the last payable and due instalment and on failing to get a positive response, sought to make the final payment after some deduction but much after the OP cancelled the booking. Even the last grievance of snag relating to marble flooring was also attended to as per the practice of replacing the particular slab and not the entire floor. Learned counsel relied upon clauses 5, 6.9 of the Construction agreement which deals with Payment Schedule, Delay /Default and Completion and Delivery of Possession. Learned counsel also relied upon clause 1.6 of the agreement to sell.

28. Learned counsel also argued that assuming without admitting that some snags remained post 2016, the last instalment could not have been withheld by the complainant having regard to Clause 6.9 of the construction agreement as the same would be attended to and rectified post handing over of Possession after full payment. Further, as per clause 6.1 of the construction agreement, the OP is entitled to grace period of 6 months in addition to 36 months from 27.11.2012 to complete and hand over the possession. Further, as per contractual obligation, the OP had time till May 26, 2016 to complete and hand over the apartment. The occupation I certificate of completion was issued on 11.08.2016. Learned counsel also argued that cancellation of allotment and agreement is dated 18.01.2017 and full refund was given on 06th April, 2017 without any deduction although OPs were entitled to forfeit 20% of the amount. Further, it is argued that at the time of filing of the complaint, there was no subsisting cause of action inasmuch as the booking had been cancelled for non-payment of the last instalment in terms of contact and full refund had been refunded. It is also argued that present complaint needs to be adjudicated by a Civil Court, as it is involves disputed questions which cannot be decided in summary proceedings.

29. The two complainants are the joint allottees of the unit in question. OP No.1 and OP No.3 are the same Company, indicated separately in memo of parties with OP No.1 at its Corporate Office address at Mumbai and OP No.3 with its marketing address at Bangalore. By its own admission, OP No.2 has since merged with OP No.1. Hence, any liability of OP No.2 ( if any) will now fall upon OP No.1 and OP No.3, i.e. on Palladium Construction Pvt. Ltd., which will hereinafter also be referred to as OP.

30. While admitting the complaint on 12.06.2017, it was ordered that status quo shall be maintained in respect of flat in question.

31. As per clause 6.1 of Construction Agreement dated 30.11.2012, the committed date of possession was 36 months from the date of commencement of construction within 6 months grace period. In the absence of any evidence on record about the date of commencement of construction, we calculated the committed date of possession from the date of signing the construction agreement and this has not been disputed by both sides. Hence, the committed date of possession in the present case comes to 26.05.2016. Admittedly, the OC was obtained by OPs on 11.08.2016 and the possession was offered on 11.08.2016. The OC dated 11.08.2016 is titled 'Partial Occupation Certificate' and was subject to various conditions stated therein.

32. Perusal of offer of possession letter dated 11.08.2016 indicates that the unit 1011 is on 1st Floor in Tower-1 at 'One Bangalore West'. It states that unit in question has been ready for quite some time and that OP(s) have applied for OC on 02.02.2016 and somewhere in June/ July 2016, they received permission to operate the lifts, and have since received the necessary permissions, including the OC from BBMP, which are required for handing over the unit to the complainants. Further, this letter demands a balance sale consideration of Rs. 19,18,754/- and the amount of Rs. 17,94,474/- towards stamp duty and registration charges.

33. On getting the said offer of possession, the Complainants vide their email dated 02.09.2016 raised certain concerns including those relating to payments under various heads. Another email was issued by the complainant on 12.09.2016 which is reproduced below:

                   First of all, wish to inform you that the below mentioned mall sent on 2nd Sept has had no response, whatsoever, from you end, for reasons be known to you.

                   As far as we are concerned, the so called 3 month period mentioned In your possession intimation letter, has not vet started.

                   Further, during the course of visiting our Apt 1011 along with the interior designer/s on the 10th & 12th Sept, the following faults have been noticed in the apartment, which are unacceptable & have to be rectified on priority. The respective pics are enclosed.

                   Comments:

                   - The walls of the bathroom in Bedroom 2 have developed blisters, though there is no water/dampness on the wall behind.

                   - The wall below the kitchen sink appears unfinished.

                   - There is a gaping hole near the switch plate on the wall in the Living room

                   - Bathroom window glass is broken in bedroom 3.

                   - The living room floor tile is damaged & has been patched up in a terrible manner. This is not acceptable. The tile/s need replacement & no compromise on that l/Ve expect a revert to our communication/s immediately.

                   Vide reply dated 10.10.2016, OP informed the complainant as follows:

                   We are happy to Inform you that the snags pointed out by you on your visit are under process and the same would be completed by the 17th October 2016.

                   Kindly intimate by return email what would be a convenient time for you to inspect the same on the October 2016.

                   Our attention was also drawn to email dated 20.12.216 from OP to Complainant, which is reproduced below:

                   Dear Sir,

                   Greetings from Phoenix.

                   Following are minutes of the meeting held on December 19,2016 at our office.

                   Attended by:

                   Mr. Prakash Koppa

                   Mr. Amian Chakraborty

                   Mr. Asif

                   Mr. Venkatesan

                   Mr. Subodh

                   1. Dining room marble finishing - It was decided that the marble piece will be replaced with similar one from the same batch.

                   2. Main door beading - The Main door shall be replaced with a new one .

                   3. Dampness on the wall - Dampness issue has already addressed and rectified, however the same is kept under observation and will inspected once again thoroughly before finishing with paint.

                   A total of 10 working days would be needed to complete the abovementioned marble replacement and the two other items of work can be inspected at the same time.

                   This is for your kind information.

34. On 18.01.2017, OP issued a notice of termination of Agreement to Sell and Construction Agreement dated 30.11.2012. As per this notice, the consideration under the agreement to sell is Rs. 1,47,74,800/- and the amount payable under the construction agreement is Rs.1,38,00,592/- aggregating to Rs.2,85,75,392/- and the total revised consideration is Rs.2,89,29,795/- (inclusive of taxes and all other applicable charges). This notice also states that complainant has made payment of Rs.2,62,88,104/- against the total amount payable, hence they have to pay the balance of Rs.26,41,691/- and interest of Rs.2,88,769/- towards prior delayed payment charges to register the Sale Deed and take possession of the said unit. This notice further states that complainant has not fulfilled his obligations and has been giving flimsy reason of minor snags in the apartment. Hence, invoking clause 1 of the agreement to sell and clause 5 of the construction agreement, the OP (s) have terminated the booking and allotment of apartment no.1011. This notice further states that as per applicable clauses of the said agreements, an amount of Rs.52,74,000/- being 20% of the cost of construction had been forfeited as the agreed amount of liquidated damages and also the outstanding interest amount of Rs.2,88,769/-. The notice further states that OP shall refund the balance amount of Rs. 1,54,51,335/- within 2 months of re-sale I transfer of the schedule 'B' and Schedule 'C' properties. However later on suo moto, OP(s) refunded the entire amount to the complainant on 06.04.2017.

35. This notice was responded to by the Complainant vide their email dated 21.01.2017 followed by email dated 21.01.2017 which is reproduced below:

                   Dear Amalan /Asif/ Venkatesan / Subodh / Suhas,

                   Thank you for the meeting held today at 4 p.m. with Suhas & Deepak and later, briefly with Amalan. Sarita & me would like to reiterate as below:

                   - we are deeply disturbed & stressed on receiving the termination

                   . notice sent by Suhas, the hard' copy of which was received today

                   - Post the meeting had on 19th Dec 16, you had indicated that 10 working days will be needed to complete the issues discussed. -

                   - Even after one month, today on the 21st of Jan '17, we haven't heard from you, on the same.

                   Please note:

                   - that we are not wilfully at default regarding the last instalment of Rs. 26+ lacs, (kindly refer to the documentation, mails pictures etc., reg this)

                   - for someone who has paid up 2.62 Cr promptly from the beginning, do you feel this was intentional ?

                   We were eagerly waiting for a mail from your end informing about the corrections done.

                   In fact on Friday 13th January, I met Venkatesan and enquired about this, to which he replied that the jobs were done and that CRM will be informing us in a day or two.

                   Since we have gone in for a bank loan for the last instalment and registration, the bankers (SCB) have been after us to release payment to you.

                   Under the circumstances, please confirm the job execution as per the MOM of 20.12.16 & send in the Demand Note for the 26+ lacs.

                   We will make sure that the payment is done forthwith.

36. A formal reply to the termination notice dated 18.01.2017 was issued through legal notice dated 04.03.2017 which was replied through a communication dated 07.04.2017.

37. We have carefully considered the entire facts and circumstances of the case in the light of the pleadings / evidence adduced by both parties and rival contentions which have been summed up in preceding paras. What emerges from the evidence / documents on record is that when the possession of the unit in question was offered on 11.08.2016, some deficiencies were noted in the unit which has been admitted by the OP(s) and many of those deficiencies were got rectified by the OP(s). Hence, the contention of the complainant(s) that unit was not complete in all respects with promised facilities and amenities and there were deficiencies is correct, hence they were justified in withholding the last payment. As per the schedule of payment the 13th instalment was payable on completion of 29th roof slab, 14th instalment was payable on completion of block work, 15th instalment was payable on completion of flooring, 16th instalment was payable on completion of painting and last and 17th instalment was payable on possession which was Rs. 23,18,616/-. The balance amount was ultimately paid by the complainant, notwithstanding his contention is that still some minor deficiencies I snags remained. Hence, we are of the considered view that action of the OP(s) in cancelling the agreements vide their termination letter dated 18.01.2017 and proposing to forfeit 20% of the cost of construction was not justified. Hence, we set aside the said notice of termination of agreement to sell and agreement to construction and hold that complainant is entitled to possession of the unit in question, complete in all respects with all promised facilities and amenities and specifications contained in the agreement. As the total amount paid by the complainant(s) has since been refunded by the OP(s) and the complainants have expressed their willingness to repay back that amount to the OP(s) with reasonable interest as decided by this Commission, we hereby partly allow the CC with following reliefs:

                   a. Complainant(s) is hereby granted one months time to pay back the entire sale consideration to the OP(s) through demand draft, under due acknowledgment, or through RTGS or through any such accepted mode.

                   b. As soon as the entire sale consideration amount is remitted back by the complainant(s), OP(s) will have another one month's time from the date of receipt of the amount to deliver the actual physical possession of the unit in question to the complainant(s) complete in all respects with all promised facilities and amenities as per the agreement

                   c. As the possession was offered on 11.08.2016 and committed date of possession was 26.05.2016, the complainant(s) are entitled to delay compensation only for the period from 26.05.2016 to 11.08.2016, as the delay in actual physical possession beyond 11.08.2016 has happened due to dispute between parties with respect to pending payments and certain deficiencies in the unit in question. OP(s) shall adjust the delay compensation for this period from the total amount to be paid by the complainant(s) in accordance with the agreement. Hence, OP(s) shall prepare the revised statement of account(s) in accordance with this order to the complainant within maximum of one week from the date of this order to enable the complainant(s) to repay the sale consideration after adjustment of the delay compensation.

                   d. As the amount of Rs. 2,56,27,173/- refunded has remained with the complainant since then, we also hold that complainant is liable to pay interest @ 9 p.a. on this amount to the OP till date of repaying this amount back to the OP(s). Hence, the amount to be paid by the complainant now to the OP(s) towards entire sale consideration after adjustment of the delay compensation shall be paid alongwith interest @ 9% p.a. from the date it was received by the complainant till the date of repaying back to the OP by the complainant(s).

                   e. Complainant is also entitled to litigation cost of Rs. 1.00 lakhs which should also be adjusted from the amount payable by the complainant(s) as per the above stated directions.

38. Pending IAs, if any, also stand disposed off.